18th May 2021
A historian of ideas – probably Isaiah Berlin – once averred that most philosophical systems were ultimately simple affairs.
What made them complicated, it was said, were the elaborate defences and anticipations of objections so as to make the arguments advanced harder to attack or dismiss.
I have no idea if this is true, as I have no head for philosophy, but I have often thought the same can be said for contracts.
Most agreements are also relatively simple – and most of us, every day, enter into oral contracts which are nothing more than ‘I give you [x] in return for [y]’.
Written out, such contracts would not need to be longer than one sentence – a single clause.
What makes a legal agreement complicated – and what can make a written contract go on for hundreds of pages of clauses and schedules – are the provisions dealing with what will happen if one party does not do [x] or the other party does not do [y].
This is because most written contracts are not there for when things go well: they are there for when things go badly.
The more provisions that are in a contract, the more allocations of risk and protections for the parties if there are problems.
For high-value or significant agreements, teams of lawyers will painstakingly (and often expensively) go through every possible and foreseeable eventuality, and will then allocate risk accordingly as between the parties.
There will also be detailed provisions setting out the processes for resolving and remedying problems.
In most circumstances, those provisions will not ever be used.
(As a general though not universal rule, the more effort that goes into putting a contract together, the less scope for genuine disputes later.)
But sometimes a thing can happen to disrupt an agreement that has not been addressed in the agreement.
This disruptive event can have three qualities: (1) it will be outside the control of the parties (else all you would have is a potential breach); (2) it will be outside of the allocations of risk in the agreement (else the agreement already deals with what will then happen); and (3) it will affect the performance of obligations under the agreement (else it would not matter).
In legal language, such a disruptive event is said to ‘frustrate’ the agreement.
In English contract law, such frustrations often lead to unfair and uncertain results – and every law student will know of the so-called ‘coronation cases’.
Lawyers elsewhere, however, approached this sort of predicament differently and developed the doctrine of ‘force majeure’.
A force majeure event is a thing that (1) is outside the control of the parties; (2) is outside of the allocations of risk in the agreement; and (3) affects the performance of obligations under the agreement.
If the doctrine applies there is then some certainty of what will then happen in the event of a force majeure event – sometimes the consequences can be agreed between the parties, or the consequences may be provided for under the general law.
Force majeure, however, is a residual thing – if the parties have foreseen the particular risk and allocated that risk then the terms of the agreement should take priority.
This means (generally) the more detailed the agreement, the more limited the scope for force majeure.
The analysis set out by me above is from the perspective of an English commercial lawyer but the doctrine also exists in what is called ‘public international law’ – that is the law that regulates relations between countries (and also international organisations):
Here’s force majeure. Arguably problematic, because it must make compliance materially impossible. BUT /7 pic.twitter.com/nAQuH13jjn— Holger Hestermeyer (@hhesterm) May 18, 2021
You will see the public international law document quoted provides that a thing cannot be a force majeure event if (a) it is because of the conduct of the state seeking to rely on it and (b) the risk of it happening has not been allocated.
What all this means is that it is often difficult in practice to rely on force majeure when there is in place a detailed and specially negotiated agreement.
This is because the parties will have foreseen and addressed most practical problems.
And even if there is a force majeure event, that also does not mean it is a ‘get out of an agreement free’ card – as all that may result is a temporary relief from fulfilling an obligation until the force majeure event is over.
The reason why force majeure is in the news is because David Frost, the United Kingdom minister responsible for Brexit negotiations, appears to think that force majeure can be relied on to relieve the United Kingdom from its obligations under the Brexit withdrawal agreement and its Northern Ireland protocol.
UK considers using force majeure over NI protocol https://t.co/36NUP7U55k— Tony Connelly (@tconnellyRTE) May 18, 2021
The news report says:
‘Force majeure is a legal concept through which a party can demand to be relieved of its contractual obligations because of circumstances beyond its control or which were unforeseen.
‘The suggestion is contained in a 20-page letter the UK has sent to the European Commission.’
To which the response should be: good luck with that.
In practice, any reliance on the doctrine of force majeure by the United Kingdom will come down to two particulars: (1) what is the (supposed) particular force majeure event, and (2) what is the particular obligation that is (supposedly) affected by that event.
Until this is known, one cannot be completely dismissive.
It is difficult to believe that there is any event that (1) affects the performance of a particular obligation under the Northern Ireland Protocol which (2) is not within the control of one of the parties and (3) is not addressed in the protocol.
The great difficulty with any "unforeseen change of circumstances" argument by the UK government to get rid of the withdrawal agreement is the evidence of what the UK government did in fact foresee. https://t.co/xlb5ULxp49— Steve Peers (@StevePeers) May 18, 2021
The problems Johnson's own deal has caused the GFA are the precise opposite of force majeure. These circumstances were entirely foreseeable, were pointed out clearly 5 years ago (for example, by Major and Blair) and were dismissed by Brexiter politicians as "Project Fear".— Jake Ireland (@Jake_Ireland) May 18, 2021
And in response to the thread on Twitter on which this blogpost was based, this scepticism was endorsed by Jonathan Jones, who was the United Kingdom’s chief legal official during the Brexit negotiations:
Good explainer (as usual from @davidallengreen) on force majeure. It’s difficult to see how the UK could invoke the concept for the NI Protocol, since that contains its own express provisions for “when things go wrong” – the famous Art 16, with the detailed procedures in Annex 7 https://t.co/iMUsq5H9Kw— Jonathan Jones (@SirJJQC) May 18, 2021
That the United Kingdom government had not thought through or cared about the detail of the withdrawal agreement was not unforeseeable.
It was, to use another technical legal term, bleedingly obvious.
It is difficult to conceive of anything that could be a force majeure event that is not already subject to the provisions and processes of the Northern Ireland Protocol.
On the face of it, therefore, the resorting to ‘force majeure’ by the United Kingdom looks desperate – a makeweight argument deployed for want of anything more compelling.
There is, however, the delicious legal irony in the circumstances of the United Kingdom seeking to rely on a French legal doctrine used to cure the inadequacies of English law-making.
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